United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
O' CONNOR UNITED STATES DISTRICT JUDGE.
the Court are Defendant’s Motion for Summary Judgment
and Brief in Support (ECF Nos. 14–15), filed February
5, 2019; Plaintiff’s Response and Brief in Support (ECF
Nos. 23–25), filed February 26, 2019; and
Defendant’s Reply (ECF No. 26), filed March 8, 2019.
Having reviewed the motion, briefing, and applicable law, the
Court finds that Defendant’s motion should be and is
February 1, 2019, Plaintiff Roberta Austin was shopping at a
Jo-Ann fabric store when she slipped on either: (1) red
glitter; (2) black glue; (3) a combination of glitter and
glue; or (4) loose staples. Pl.’s Br. Supp. Resp. 5,
ECF No. 25 [hereinafter, “Pl.’s Br.”].
Plaintiff fell to ground, injuring her shoulder. Id.
Emergency personnel were called and arrived at the Jo-Ann
store at 1439 W. Pipeline Road, Hurst, Texas, a short time
later. Id. Paramedics assisted and transported
Plaintiff to the hospital in an ambulance. Id.
Plaintiff brings this suit against Defendant Jo-Ann Stores
seeking to recover damages for: (1) her medical expenses; (2)
pain and suffering; (3) mental anguish; (4) physical
impairment; (5) disfigurement; and (6) exemplary damages. Am.
Compl. 3– 4, ECF No. 5.
Court may grant summary judgment where the pleadings and
evidence show “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “[T]he
substantive law will identify which facts are
material.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A genuine dispute as to any
material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. The movant must inform the court
of the basis of its motion and demonstrate from the record
that no genuine dispute as to any material fact exists.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
reviewing the evidence on a motion for summary judgment,
courts must resolve all reasonable doubts and draw all
reasonable inferences in the light most favorable to the
non-movant. See Walker v. Sears, Roebuck & Co.,
853 F.2d 355, 358 (5th Cir. 1988). The court cannot make a
credibility determination in light of conflicting evidence or
competing inferences. Anderson, 477 U.S. at 255. If
there appears to be some support for disputed allegations,
such that “reasonable minds could differ as to the
import of the evidence,” the court must deny the
motion. Id. at 250.
initial matter, the Court must resolve Plaintiff’s
contention that she “has plead a viable premises
liability and/or negligence claim.” Pl.’s Resp.
1, ECF No. 24. “In Texas, when an injury arises on a
premises, two potential causes of action generally arise
against the premises owner and/or occupier-negligent activity
and premises liability.” Robles v. Ross Stores,
Inc., No. 3:16-CV-0086-B, 2017 WL 2306527, at *2 (N.D.
Tex. May 26, 2017) (citing U.S. Dist. Court S. Dist. of
Tex. Hous. Div. Charles Plata v. Chipotle Mexican Grill,
Inc., H-15-2436, 2016 WL 126420, at *1 (S.D. Tex. Jan.
12, 2016)). “Although negligent activity and premises
liability claims are branches of the same tree, they are
conceptually distinct: ‘[N]egligent activity
encompasses a malfeasance theory based on affirmative
contemporaneous conduct by the owner that caused the injury,
while premises liability encompasses a nonfeasance theory
based on the owner’s failure to take measures to make
the property safe.’” Id. (citing
Austin v. Kroger Tex. L.P., 746 F.3d 191, 196 (5th
Cir. 2014) (quoting Del Lago Partners, Inc. v.
Smith, 307 S.W.3d 762, 776 (Tex. 2010))). “When an
alleged injury is caused by a condition created by
some activity rather than by the activity itself, a
plaintiff is limited to a premises defect theory of
liability.” Id. (emphasis added); Garcia
v. Ross Stores, Inc., 896 F. Supp. 2d 575, 579 (S.D.
Tex. 2012). Here, Plaintiff does not allege she was injured
by some negligent activity itself. Rather, Plaintiff
alleges she was injured when she slipped on a substance on
the floor of a Jo-Ann fabric store and argues that
condition should have been prevented. Accordingly,
Plaintiff’s cause of action is properly construed as a
textbook premises liability claim, not a negligent activity
Premises Liability Claim
moves for summary judgment, arguing Plaintiff does not
present sufficient evidence to prevail on her premises
liability claim. Specifically, Defendant argues: (1)
Plaintiff cannot demonstrate Defendant had actual knowledge
of the substance on the floor; (2) Plaintiff cannot
demonstrate Defendant had constructive knowledge of the
substance on the floor; and (3) Defendant owed no duty to
Plaintiff because the alleged condition was open and obvious.
Def.’s Br. Supp. Mot. Summ. J. 5, ECF No. 15
[hereinafter, “Def.’s Br.”]. Plaintiff
responds by arguing that the parties dispute certain material
facts, which should preclude summary judgment. Pl.’s
Br. 9–12, ECF No. 25. Specifically, Plaintiff argues
that: (1) there is a fact issue as to whether Defendant had
actual knowledge of Plaintiff’s accident; (2) there is
a fact issue as to whether the substance was open and
obvious; (3) principles of equity should prevent Defendant
from prevailing by claiming ignorance of the accident; and
(4) Defendant should have discovered the substance before
Plaintiff slipped. Id.
order to prevail on a claim for premises liability, plaintiff
must establish that: ‘(1) defendant had actual or
constructive knowledge of some condition on the premises, (2)
the condition posed an unreasonable risk of harm, (3)
defendant did not exercise reasonable care to reduce or
eliminate the unreasonable risk of harm, and (4)
defendant’s failure to use reasonable care to reduce or
eliminate unreasonable risk of harm proximately caused
plaintiff's injuries.’” Quintero-Vasquez
v. Wal-Mart Stores Texas, LLC, No. 4:14-CV-520-A, 2015
WL 1637954, at *2 (N.D. Tex. Apr. 10, 2015) (quoting LMB,
Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006)).
Notably, “[a] slip-and-fall plaintiff satisfies the
notice element by establishing that (1) the defendant placed
the substance on the floor, (2) the defendant actually knew
the substance was on the floor, or (3) it is more likely than
not that the condition existed long enough to give the
premises owner a reasonable opportunity to discover
it.” Id. (quoting Wal–Mart Stores,
Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). Here, as
in Quintereo, “Plaintiff has not alleged that
defendant placed the substance on the floor.”
Id. Accordingly, to satisfy the notice element,
Plaintiff must present some evidence to establish that
Defendant had either actual or constructive knowledge of the
hazardous substance. If Plaintiff cannot do so, her claim
fails as a matter of law.
argues Plaintiff “cannot present evidence showing that
Jo-Ann had actual knowledge, as there is no evidence that
[Defendant] or any of its employees, representatives, or
agents…knew that the substance was there prior to
Plaintiff’s incident.” Def.’s Br. 6, ECF
No. 15. Plaintiff responds by arguing that there is a genuine
issue of material fact over whether Defendant had actual
knowledge of the incident. Pl.’s Br. 9–12,
ECF No. 25. Plaintiff argues, based on the circumstances,
that Defendant cannot in good faith deny knowledge of the
incident itself. But for premises liability purposes,
knowledge of the incident is not at issue. Rather
the relevant inquiry is whether Defendant knew of the
substance before the incident and failed to act
reasonably if that condition presented a risk of harm.
See Wal–Mart Stores, 81 S.W.3d at 814. Here,